CRITIC’S CORNER: Wisconsin courts as ‘superlegislatures’

Michael D. Cicchini is a criminal defense lawyer in Kenosha. He is also the author or coauthor of three books and 18 law review articles on constitutional law, criminal law and procedure, and other topics. Visit www.CicchiniLaw.com for more information.

In State v. Williams,[1] the appellate court interpreted Wisconsin’s immunity statute, which protects a person from prosecution for simple drug possession under certain circumstances. [2] The basic idea behind the statute is this: If A and B are using drugs together, and B overdoses, we want A to summon medical help for B without having to worry about being prosecuted herself.

But what if, at the time A summons medical help, she is on bail for a pending criminal case, which prohibits her from committing any crimes? Can the state prosecute A for bail jumping for committing a crime when it cannot prosecute A for the drug possession itself?

For two reasons, the answer should be no.

First, in order to prove bail jumping for committing a crime, the state would have to prove the underlying crime of drug possession — a crime for which A has immunity. And second, the purpose of the immunity statute is to give A an incentive to seek medical help for B without fear of being prosecuted. It would completely defeat the purpose of the statute to allow the state a form-over-substance, end-run around the immunity law.

The court, however, held that even when the state is prevented from prosecuting A for committing the crime of drug possession, it can still prosecute her for bail jumping for committing the crime of drug possession. The court’s reasoning: the defendant “essentially asks us to act as a superlegislature, contemplating and enacting immunity for crimes (i.e. bail jumping) in addition to those listed (e.g. drug possession). That is not our role. … We are bound by the words the legislature chose.”

This is an odd conclusion to reach. In reality, Wisconsin courts have a long history of acting as a “superlegislature” and ignoring — and even contradicting — the Legislature’s words when doing so benefits the state.

For example, in criminal cases, the state is required to file a witness list before trial. The statute is clear that “(t)he court shall exclude any witness not listed … unless good cause is shown for failure to comply.”[3]

That language — “shall exclude” — seems simple enough for a court that is “bound by the words the legislature chose.” However, in State v. Raasch,[4] the appellate court, acting as a “superlegislature,” held that “in order to exclude a witness, defense counsel must … show surprise and prejudice by the State’s failure to disclose. These requirements further the aims of the discovery procedure(.)”

So why wouldn’t the Williams court consider “the aims” of the immunity statute before deciding in favor of the state? Conversely, why wasn’t Raasch “bound by the words the legislature chose” when it opted to rewrite the discovery statute in favor of the state?

As another example, in preliminary hearings the state presents its witnesses first. Then, the defendant has the statutory right to “call witnesses on the defendant’s own behalf.”[5] In State v. O’Brien,[6] the state’s police-officer witness testified and merely repeated the hearsay statements of “S.M.O.,” an eyewitness to the defendant’s alleged crime. At the same time, the state’s witness admitted that her recitation “did not contain the complete statement from S.M.O.” about what was alleged to have happened.

Fortunately, the defense had S.M.O. under subpoena and, when the state was finished presenting its evidence, attempted to call him as a witness. However, despite the plain language of the statute allowing the defendant to “call witnesses on the defendant’s own behalf,” the court, acting as a “superlegislature,” added some new language to the statute. Our Supreme Court held that, in order to call S.M.O. as a witness, the defense would first have to tell the court “what S.M.O. would actually say.”

Even though S.M.O’s testimony was relevant — after all, S.M.O.’s incomplete hearsay statements were the basis for the state’s victory at the preliminary hearing — the court required the defendant to first know, and then disclose ahead of time, the content of S.M.O.’s testimony before being permitted to exercise his statutory right to call a relevant witness.

As these two examples prove, Wisconsin courts (at all levels) act as “superlegislatures.” In fact, a court “superlegislated” again before I could finish writing this article. Although the state’s restitution statute only permits the court to order restitution for a crime “for which the defendant was convicted and any read-in crime,”[7] the court, through its long, winding, and twisted reasoning, ignored the legislature’s plain language and ordered restitution for crimes that were not read-in and for which the defendant was never convicted.[8]

So when a court says it is refusing to act as a “superlegislature,” it is not taking a principled stand based on some time-honored legal doctrine. Rather, the odds are great that it is looking for an excuse to read the statute in a way that benefits the state, at the expense of a criminal defendant.